Posted By Contributed On July 22, 2013 @ 9:00 am In Regulatory,Regulatory Roundup | No Comments

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Adele Abrams, Esp., CMSP

A coal company’s attempt to sue a miner who has a pending Section 105(c) “whistleblower” claim has ended in defeat after MSHA filed a retaliation claim on the miner’s behalf and ALJ Feldman ordered the mine operator to cease and desist by dropping its state claim for punitive and compensatory damages.

In Secretary of Labor v. Armstrong Coal Company, Inc. (ALJ, June 19, 2013), the judge had harsh words to say about the mine operator’s effort to sue the terminated miner under Kentucky state law for “Wrongful Use of Civil Proceedings,” even though the FMSHRC had found the original whistleblower action was not frivolously brought (and granted temporary reinstatement) and no merits hearing had yet occurred on the claim.

The miner at issue, Reuben Shemwell, had initially raised a safety concern about respiratory protection with his supervisor, after being overcome by welding fumes. Shortly thereafter, a series of disciplinary actions was brought against Shemwell–allegedly for overuse of his cell phone while on company time–and he was terminated.

MSHA represented him in the temporary reinstatement action, but ultimately declined to represent him in the merits case, and that case still continues under Section 105(c)(3) (the provision for private actions). As Judge Feldman noted, it is not uncommon for the FMSHRC to find discrimination in such a proceeding brought by a miner, pro se, despite the Secretary’s determination not to pursue the case. There is a lower standard of proof for temporary reinstatement hearings, however, and the court must simply find that the case appears to have merit or there is reasonable cause to believe the worker is a victim of discrimination.

After MSHA declined to pursue the original claim, Armstrong filed suit against Shemwell in Kentucky’s Muhlenberg Circuit Court, and MSHA responded by filing a new discrimination claim on Shemwell’s behalf, seeking a $70,000 civil penalty against the company in addition to relief for Shemwell. The Secretary alleged that the Armstrong civil suit violated Section 105(c)(1) because it interfered with the miner’s right to file a discrimination complaint.

Armstrong responded that its action was protected by the First Amendment to the United States Constitution, which states (in relevant part): “Congress shall make no law … abridging the freedom of speech or of the press; or the right of the people peaceably to assemble and to petition the Government for a redress of grievances.” Armstrong went a step further, claiming its right to sue Shemwell even if the former employee ultimately prevailed in his discrimination suit, and asserting that the First Amendment cannot be infringed upon by the Mine Act.

ALJ Feldman rebutted that the FMSHRC is not required to adopt Armstrong’s “like it or not” view of its First Amendment right, and that Shemwell’s statutory right to bring a discrimination claim preempts the company’s civil tort claim, regardless of the outcome in the underlying case. He called Armstrong’s civil suit “baseless and retaliatory” and noted that the Kentucky law required a decision in favor of the plaintiff to support a “wrongful use” claim (which had not yet occurred).

In its pleadings before the Commission, Armstrong stressed that it would–in its view–have a similar right to file such a suit against complainants in a EEOC civil rights case, or a worker’s compensation or unemployment case, based solely upon a claim that the employee had not filed the complaint “in good faith.”

ALJ Feldman rejected Armstrong’s claim that it could bring the Kentucky law suit, even if it interfered with Shemwell’s statutory rights under the Mine Act, even if his claim was eventually found to have merit and even if the state suit created a “chilling effect” that would prevent other miners from filing discrimination complaints out of fear of being civilly sued by its employer.

Judge Feldman noted that the legislative history of the Mine Act stressed the important role of miners in enforcing the Act, and that “if miners are to be encouraged to be active in matters of safety and health, they must be protected against any possible discrimination which they might suffer as a result of their participation.”

The judge also rejected Armstrong’s argument that Shemwell was no longer a miner by definition because he had been terminated and, therefore, was no longer subject to the Act’s protections. The judge held that an individual retains his status as a miner where the protected activity occurs during the miner’s employment or where the protected activity is the filing of a discrimination complaint after discharge occurred. He also held that filing the civil suit was an impediment to Shemwell’s statutory right to seek redress, referencing similar U.S. Supreme Court holdings in the National Labor Relations Act context: “the chilling effect of a state lawsuit upon an employee’s willingness to engage in protected activity is multiplied where the complaint seeks damages in addition to injunctive relief. . . .”

ALJ Feldman made short work of dismissing the First Amendment claim, noting that such rights are not immunized from regulation when they are used as an integral part of conduct which violates a valid federal statute. Preemption by the Mine Act was appropriate where, as here, enforcing one party’s right to petition a state court would interfere with another party’s right to petition a federal agency. He concluded that miners must be insulated from any chilling effect that would inhibit their willingness to report safety-related concerns to mine management.

Armstrong was directed, through a cease and desist order, to drop its state action against Shemwell within 40 days, and to work on a resolution that would include relieving Shemwell of any financial burden (e.g., attorney fees and costs) associated with defending against Armstrong’s action, as well as compensation for any impediment the civil suit had on his ability to procure equivalent employment in mining, and compensation for demonstrable physical or emotional harm related to the civil action. He added that a violation of Section 105(c) is tantamount to an MSHA violation that results in a citation and, therefore, Armstrong could be subject to fines of $7,500 per day if it fails to abide by the cease and desist order.

About the author: Adele L. Abrams is an attorney, Certified Mine Safety Professional and trained mediator who is president of the Law Office of Adele L. Abrams P.C. in Beltsville, Maryland. Abrams provides consultation, safety audits and training services to MSHA- and OSHA-regulated companies. Contact Abrams at safetylawyer@aol.com[2] or visit safety-law.com[3] for more information.